Private plan changes

Abstract

The Resource Management Act 1991 (RMA) allows anyone to seek changes to district or regional plans through a request for a private plan change. Requests for private plan changes enable innovative proposals to be tested through the RMA process, and allow applicants to initiate change without waiting for a plan review. Part II of the First Schedule of the RMA sets out procedural matters for local authorities to follow in dealing with requests for plan changes.

Because of the costly and often lengthy nature of the private plan change process, it is generally used to provide for large-scale developments on large areas of land. Councils and applicants need to work closely together from the start of the process to reduce delays and minimise costs where possible.

Councils normally require very detailed information, and must consider the cumulative effects of private plan changes when making a decision. The impact of existing activities on the proposed development (reverse sensitivity) is an important area for consideration where the plan change request relates to the rezoning of land.

An applicant can request a private plan change at any time, but a change can only be made to an operative plan. When it receives a request for a plan change, a council must decide whether to adopt a plan change, accept it as a private plan change, convert it to a resource consent, or reject it.

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Guidance note

• Context
• When to use a private plan change
• Private plan change or resource consent
• Timing and costs
• The private plan change process
• The applicant lodges a request for a private plan change
• The council processes the request
• The council modifies the request
• The council decides on the request
• Matters for the council to consider
• Working with the private plan change process

Context

Changes to district and regional plans allow any plan provisions to be replaced and new provisions introduced. Requests for private plan changes potentially enable a wide range of changes such as the rezoning of land, amendments to design controls, and the identification of heritage structures, the key difference being their initiation by parties other than the council.

Private plan changes are typically initiated to provide for some type of private benefit (usually in financial terms) but invariably also result in public benefits such as an increased rating base, greater choice in living environments, or economic development opportunities. To date, landowners and developers have been the usual applicants for a private plan change.

The main benefit of a private plan change is that someone - other than the council - sets the agenda and the start time. In other respects, a private plan change is much like any other change to a plan.

When to use a private plan change

The private plan change process can be used to change any provision (or introduce new provisions) in any district or regional plan. Some examples of how private plan changes could be used include (but not limited to):

• The rezoning of land to provide for residential expansion or rural residential development, the creation of a business park or a new town development.
• Rural zone changes to provide for tourist activities and accommodation.
• Adding an item to the Council's heritage list.
• Amending rules relating to building design controls.
• Introducing provisions for new utility structures.
• Replacing development plans that have become out of date.
• Amending rules referring to standards or other documents that have become out of date.

The age or stage of the plan itself can affect the decision to request a private plan change. A private plan change allows an applicant to start seeking a change to outdated provisions immediately, rather than waiting to make submissions on a proposed plan or a plan review.

A private plan change request can be made to a proposed plan, although the Environment Court has held that if approved it cannot take effect until the plan is operative. An instance where this approach might be utilised is if a person missed making a submission to the proposed plan for the activity/ change they wished to pursue. It could also be used to persuade council to promote its own Variation to the proposed plan.

In all cases, regardless of the focus of the private plan change there is a need to provide sufficient and adequate information to support the change. This can often require quite detailed material to be supplied and can be costly.

Private plan change or resource consent

A resource consent grants permission for an activity, while a private plan change alters the plan itself. A plan change normally provides greater flexibility in terms of development options and long-term management for the developer. However, any change promoted can be amended and regulated through the submission and hearing process.

The RMA does not have specific requirements concerning whether applicants apply for resource consent or a private plan change. The applicant can choose which to apply for, and can also apply for both. However, case law shows that the courts may decide that one or the other is more appropriate. Early guidance from the council is useful.

Table: Contrasting a resource consent and a private plan change

Resource consent	Private plan change
Allows a site-specific activity	Can be either site specific or district wide
Suitable for contained, one-off activities	Suitable for a range of matters that are not provided for within the current plan provisions
Has a specific "life" or expiry date	"Life" or expiry date is the same as the life of the plan
Attached conditions; more prescriptive	Sets up a long term management framework
Generally, cheaper and less time consuming application process	Application process can be very costly and time consuming
Must meet the relevant s104 and s105 criteria	Must meet s32 and Part II tests

Timing and costs

The Environment Court has held that a request for a private plan change can be made at any time, but an actual change can only be made to an operative plan. In exceptional circumstances, a council has made a variation to the proposed plan on behalf of a landowner seeking the rezoning of land. A range of case law demonstrates the legal requirements for when changes are made.

The private plan change process usually takes from six months to one year, but it can take as long as three years. Current costs range from a minimum of $10,000 to $1M for large-scale developments. Average costs are around $30,000 to $50,000 for a rural residential subdivision with minimal opposition. Such costs and processing times may not be significantly different to those associated with a resource consent application for the same activity.

An applicant might ask the council to contribute to the funding of a private plan change request, on the grounds that the development will have some degree of public benefit or has links to council policy. Wellington City Council has developed a set of criteria for considering council funding of private plan change requests. This helps to provide certainty about costs, and to establish whether there is a basis for the council itself to initiate a plan change. See best practice examples for details.

The private plan change process

1. The applicant lodges a private plan change request with the district or regional council.
2. The council processes the request, can request further information and commission reports if necessary.
3. The council may modify the request with the applicant's permission if appropriate.
4. The council decides whether to adopt, accept, or reject the request, or convert the request to a resource consent.
5. The council publicly notifies a request that it has adopted or accepted allowing submissions and further submissions to then be made.
6. The council holds a hearing where it assesses the request and submission made and then issues a decision on the request.
7. The council decision is open to appeal to the Environment Court.

The applicant lodges a request for a private plan change

Any person can request a private plan change. The request must:

• Be in writing
• Explain the purpose of and reasons for the change
• Describe any anticipated environmental effects of the proposed change, taking into account the matters listed in the Fourth Schedule of the RMA
• Include an evaluation under section 32 for any objectives, policies, rules of other methods proposed (refer to section 32 guidance note).

The applicant can also provide information on:

• The mitigation of adverse environmental effects
• Consultation (refer to consultation process guidance note)
• Site-specific details, including information on services.

Providing this information now can save a lot of time later.

• Meet with council staff before you lodge the request for a private plan change. Council staff can give you constructive guidance and advice on the following matters:
  • Tell you what information you need to provide to meet council and RMA requirements. Providing this information at the start can reduce delays considerably.
  • Tell you what other plan changes and major resource consent applications have been approved in nearby areas. This will enable you to assess and plan service provision, and identify any issues the community might raise.
  • Refer to other plan changes as a model or example of good practice.
  • Give you contacts and advice on whom to consult.
  • Provide local knowledge on services, constraints and environmental issues.
  • An indication of the likely costs.
• Consult early and consult widely. Make sure you have enough time to work through problems with the parties concerned. Ensure that you document your consultation for the record, including both the process and the outcomes.
• Identify all potential impacts, their causes, and ways to mitigate the impacts.
• Where relevant, make sure that water, sewerage, stormwater disposal, drainage and roading services can be provided for the development, or prepare provisions that will limit development until services are available.
• Prepare an s32 analysis in conjunction with advice received from the council, including expert advice to support your analysis ( s.32 guidance note).

The council processes the request

After receiving the request for a private plan change the council can request further information from the applicant under section 92 of the RMA from the applicant, within 20 workings days of lodgement. This additional information can be in relation to the effects and their mitigation, section 32 analysis, and consultation, including consultation with tangata whenua. On receipt of the further information the council then has 15 working days to ask for any additional information if necessary.

The council can also commission a report about the requested private plan change, within 20 working days of receiving the request. The council must inform the applicant about the report. The council would normally pass on the costs of any such report to the applicant and as such it is good practice for the council to liaise with the applicant over the expected cost of the report.

Written reasons must be given for the further or additional information request or for the need to commission a report. The applicant can refuse to provide the information sought, or can refuse to agree to the report being commissioned, and can request that the council proceed with the original request. If the council subsequently considers that there is insufficient information to process the private plan change request, it may reject the request or not approve the plan change sought.

• All additional information or matters of clarification relating to the request should be sought prior to the council making a decision whether to accept the request in whole or in part, convert the request to a resource consent, adopt, or reject the request. The need for further information should be assessed as soon as practicable in the process.

The council modifies the request

The council can modify the request after receiving the further or additional information or commissioning a report. However, the council can only modify the request with the agreement of the applicant.

The council decides on the request

After receiving all the necessary information, the council has 30 working days to decide whether to adopt or accept the request in whole or in part, convert the request to a resource consent, or reject the request.

At this stage, the council must decide how the request will be dealt with. The decision can be made to process it as a resource consent, or to accept or reject all or part of the request, and if proceeding, determine whether it will continue as a private plan change or adopt it as a council plan change.

1. Accept request

Council has the option of accepting the request in whole or in part and proceeding to notify the request or part of the request.

If the council accepts a private plan change, it agrees the the private plan change can proceed to notification. It remains a private plan change with council administering the legal process and the costs generally borne by the applicant. Once all the submissions and further submissions have been received the council hears the matter and issues a decision.

2. Adopt request

If the council adopts a private plan change, it continues through the process as if it was a council initiated plan change. This implies that the council generally supports the change proposal and it will bear the cost of managing the plan change from the date that it adopts it. If the council adopts the plan change, it is notified, heard and decided in the same way as a plan change.

The request must be notified within 4 months of the local authority adopting the request. The request has effect once it is publicly notified.

Adopting the plan change proposal:

• Gives the council greater control over what is notified.
• Recognises the extensive work already undertaken by the applicant.
• Allows the council to work with the applicant to achieve the best outcome.
• Implies that the council generally supports the proposal.
• Implies the council will bear the cost of managing the plan change from the date that it adopts it.

Adopting the request can have both advantages and disadvantages associated with it. For example, an advantage is that people may be able to get the council to adopt the change and thereby become responsible for the processing costs. One disadvantage is that if the council adopts the change it then gains complete control of the process, and it is possible that the council could modify or withdraw the request at a later stage without the original applicant having any say in the matter.

Table illustrating differences between adopting and accepting the request

Adopting the request	Accepting the request
The council ‘adopts’ the plan change, in whole or in part, as if Plan made by local authority	The council accepts the plan change, in whole or in part, as a private plan change
The council bears the costs, although some agreement about cost-sharing may occur	The applicant bears the costs, although there may be some agreement (or council policy) about cost sharing where there is a public benefit/interest
The change is publicly notified, and the procedures set out in Part I of the First Schedule of the RMA are followed	The change is publicly notified, and the procedures set out in Part II of the First Schedule of the RMA are followed
The council is not required to: consult with the applicant when preparing the change for notification send the applicant copies of submissions send the applicant a copy of its final decision	The council is required to: consult with the applicant when preparing the change for notification send the applicant copies of all submissions send the applicant a copy of the final decision

 

3. Convert request to a resource consent

This means that the application goes through the usual resource consent procedures of notification, submissions, hearing, decision, and appeal.

4. Reject request

This decision means that the application does not go ahead in any form. This decision can be appealed to the Environment Court. Furthermore, if the council rejects the notification of plan change request the applicant could separately make an application for a resource consent. The applicant can also appeal the council's decision if the council converts or rejects the request, or adopts or accepts only a part of the change.

Councils can reject a request for a private plan change, in whole or in part, if:

• the request is frivolous or vexatious
• the council or the Environment Court has dealt with the substance of the change within the last two years
• the change is not in accordance with sound resource management practice, or would make the plan inconsistent with Part 5 of the RMA
• services can’t be provided in a sustainable manner
• the plan to which the change is being made has been operative for less than two years.

Case law illustrates that a private plan change request can also be rejected if services cannot be provided at a rate that the community can physically and economically cope with.

5. Withdrawal of request

The applicant can withdraw the request any time before the council makes its final decision. If there is a withdrawal, this must be publicly notified and the reasons for the withdrawal sent out.

Matters for councils to consider

When deciding whether to adopt, accept, convert, or reject a private plan change, the council needs to consider the integrated effects of the change, how the private plan change impacts on the operative plan’s approach to sustainable management, what parties need to be notified of the private plan change and the cumulative effects of all private plan changes in the area. It also needs to assess the environmental effects of the proposal, including reverse sensitivity, and the infrastructure services available.

Councils should:

• Consider the cumulative effect on the surrounding area from the request.
• Examine the proposed change’s consistency with the operative plan’s direction and framework.
• Examine the proposed change’s consistency with any relevant national environmental standards or policy statements, the regional policy statement, regional plans, and the district plans or proposed plans of neighbouring authorities.
• Determine whether the proposed change is consistent with regulations relating to taiapure or fisheries conservation or management, and planning documents recognised by iwi authorities.
• Take into account any relevant planning document recognized by an iwi authority, and lodged with the council.
• Assess whether the services required to support the change can be provided at a rate that the community can cope with economically and physically.
• Consider if further information is required under section 92 including other relevant reports, modification of the private plan change request with permission from the applicant.
• Take a broader view and assess all relevant matters including the potential for reverse sensitivity, impact on amenity, traffic impacts, ecological values, earthworks, runoff effects of the proposal.
• Determine which parties, if any. need to be notified of the proposed private plan change.

A council must also assess the private plan change under Part II, including:

• Assessing whether the private plan change will meet the purpose of the RMA (s5)
• Considering matters of national importance under the RMA (s6)
• Having regard to matters listed at s7 of the RMA
• Taking into account the principles of the Treaty of Waitangi (s8)
• Analysing the necessity, effectiveness and efficiency of, and alternatives to, the proposed change (s32).

A council does not need to take into account:

• Transitional plans (although it might be prudent to do so)
• Trade competition (s74(3)).

Identification of Affected Parties by Council

Affected parties must be identified when considering the notification of private plan changes.

• A site visit should be undertaken to assist with identifying who may be directly affected.

The process taken to identify affected parties should be a wider approach than that that would be undertaken for a resource consent. In particular, the policy implications and potential impacts on the surrounding community, including interest groups should be taken into account.

Notification decision by Council

When making a decision on notification, the council should ensure that:

• the provisions as set out under clause 5(1A) of the First Schedule have been met
• adequate reasoning and conclusions are provided – including the reasoning as to why and why not persons/parties have been identified as being directly affected or not directly affected
• all relevant effects have been taken into account
• all parties identified as being affected by the proposal have been directly notified, and that there is no reliance on indirect notification e.g. via the local newspaper (refer to clause 5(1A) where there is a requirement on the Council to send a copy of the public notice to any other person who, in the territorial authority’s opinion, is directly affected by the (request)).

Record keeping and documentation by Council

Record keeping and documentation of all decisions and steps is critical in all plan change processes, including the private plan change process.

• Keep file notes or other written records of all conversations and meetings relating to a private plan change application (prior to and after receipt of a private plan change application)
• Keep file notes or other written records of the reasons why the decision was made as to whether to adopt, reject, or accept the proposed plan change
• Maintain written documentation of the reasoning and conclusions for the notification decision associated with the private plan change application.

The applicant should also maintain good records and documentation, as it is likely that the applicant will hold meetings with other parties that do not always include the council.

Working with the private plan change process

Councils can enable, or facilitate, the private plan change process, and reduce its complexity and length. Councils should work closely with the applicant at all stages. The best practice examples in the following section expand on many of the tips below.

• Be receptive to private plan changes as a legitimate tool under the RMA. Provide information for applicants and for the general public on how the private plan change process works. The community needs to understand how councils make decisions about private plan changes.
• Involve developers in district growth strategy discussions, to help identify the potential for private plan changes for rezoning.
• Provide training and education for council staff on the private plan change process, and ensure staff are up to date with relevant case law.
• Create a Project Group or a support team to deal with applications. Applicants will benefit from meeting with all the necessary council staff to share ideas and information. Early guidance can greatly increase the efficiency of the process.
• Deal with requests for private plan changes quickly. Remember that their purpose is to avoid 'plan paralysis.'
• Monitor the timeframes and costs of processing the private plan changes, and compare with the timeframes and costs in other districts and regions.
• Map all private plan changes for rezoning, to get an idea of where and what development pressures are occurring.
• Monitor the cumulative effects of private plan changes, what kind of changes are being sought, and the overall use of private plan changes in the district or region.

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Best practice examples

The following examples illustrate best practice in particular aspects of plan preparation, as described in the guidance note.

Private district plan change request: Ohiro Proerties Ltd, Ohiro Road, Brooklyn
Published by Wellington City Council - August 2004
Wellington City Council has a list of criteria to justify a plan change (i.e. whether to adopt or accept the request). The criteria are set out in a table and require an analysis of the grounds for rejecting a private plan change request, and the advantages and disadvantages (benefits and costs) for the council in either accepting or adopting the change. This method of analysis allows the council to assess the request for the plan change against standard criteria for accepting, adopting or rejecting such a request.

Auckland City Council: Identification of Public and Private Good (PDF 57 KB)
Published by Auckland City Council - September 2003
A plan change to stop a short section of Sandringham Road in Auckland would have increased the size of the privately-owned property next to the road, transferring significant economic benefits to the landowner.

Auckland City Council established a Review Group to identify the public and private good implications of stopping this section of road. It was clear that if the council promoted such a plan change, it could be open to criticism that it was transferring public benefits to a private individual.

As a result, the landowner requested the road stopping and rezoning as a private plan change, leaving the council free to deal with only the technical and administrative aspects of the case. It enabled the council to handle the application in an objective and disinterested way.

Auckland City Council: Technical and Administrative Support (PDF 62 KB)
Published by Auckland City Council - September 2003
Auckland City Council assigned a number of senior staff to give technical and administrative support to a Joint Venture requesting a private plan change for Mt Wellington Quarry. Staff held regular meetings and technical workshops with Joint Venture members.

This enabled a huge, complex, and costly planning application to be lodged with the council. Although the request was eventually declined, the process created a high degree of cooperation between the council and the applicant. Issues were quickly identified and resolved, and requests for further information were limited.

Selwyn District Council Joint Work on Proposed Plan Changes (PDF 58 KB)
Published by Selwyn District Council - September 2003
Selwyn District Council staff worked closely with the applicant to fine tune the wording, meaning, and intention of proposed new provisions before a private plan change was notified. This enabled both parties to ensure that the new provisions would fit with the transitional plan, and achieve what was intended. Furthermore, it was hoped that through this process difficulties would not arise at a later date given the restrictions imposed by Clauses 10 and 16 of the First Schedule to the RMA.

Selwyn District Council: Report Format to Assist Councillors (PDF 135 KB)
Published by Selwyn District Council - September 2003
Selwyn District Council has developed a reporting format that focuses on the specific provisions from Clause 25 of the First Schedule to the RMA. This enables councillors to focus on the issues that must be decided at the first stage of the process.

Using a standard report format enables councillors to receive standardised reports, and helps avoid the problem of wider issues being debated earlier than necessary. The format is available to applicants, so they can ensure they have addressed the necessary issues. The format would also be useful for councils who are not familiar with processing requests for private plan changes.

Waimakariri District Council Project Advisory Group (PDF 73 KB)
Published by Waitakere City Council - September 2003
Waimakariri District Council has established a Project Advisory Group for dealing with requests for private plan changes. The Advisory Group consists of senior council staff who are available at no cost for applicants to meet with before lodging a request for a private plan change. This allows both parties to raise issues and exchange ideas and information.

Using a Project Advisory Group gives applicants access to all the council staff they need at one time, and provides a wealth of site-specific information that would otherwise be difficult to access. It means fewer delays in the process, and maintains council involvement in development.

Waimakariri District Council: Identification of Preferred Urban Growth Areas (PDF 57 KB)
Published by Waimakariri District Council - September 2003
Waimakariri District Council has used its District Development Strategy to identify preferred urban growth areas. When a request for a private plan change is made for a proposal within one of these areas, the council will consider joint funding to investigate development issues, servicing proposals, and design and layout.

Cost sharing arrangements help to ensure that thorough proposals are tested through the RMA process. Applicants promote many excellent themes and concepts that the council may never have considered.

Waimakariri District Council: Promoting a Plan Variation (PDF 60 KB)
Published by Waimakariri District Council - September 2003
Waimakariri District Council promoted a variation to its proposed plan after Canterbury Regional Council appealed a plan change to the transitional plan. Promoting a variation avoided the appeal being held up by "review paralysis", and meant a faster decision for the applicant. The council adapted the provisions that were to be included in the transitional plan to fit the format of the proposed plan, ensuring they provided for the development rights and environmental outcomes the plan change achieved.

Wellington City Council: Pre-lodgement Funding Criteria (PDF 60 KB)
Published by Wellington City Council - September 2003
Some requests for private plan changes include the request that the council will contribute to funding, on the basis of public benefit or links to council policy. Wellington City Council has established a set of criteria for private plan changes to help it establish:
- Who will benefit from the proposal, and therefore who should fund the work to develop a private plan change
- whether there is a basis for a council-initiated plan change, and whether the council should adopt or accept the change.

The criteria provide some certainty about how costs may be shared, before considerable work begins on developing the plan change. It also encourages early discussions between the applicant and the council.

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RMA provisions

• Clauses 21-29, Part II of the First Schedule to the Resource Management Act: process for private plan change requests.
• Section 74: key matters for a council to consider when changing its district plan.
• Section 31: functions of territorial authorities under the RMA.
• Section 5: purpose of the RMA.
• Section 6: matters of national importance.
• Section 7: other matters.
• Section 8: Treaty of Waitangi.
• Section 32: duty to consider alternatives and assess benefits and costs.

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Case law

Countdown Properties (Northland) Ltd v Dunedin City Council and others [1994]NZRMA 145

The Planning Tribunal found that any person can request a change to an operative plan, and the council can promote the change even if it has a transitional plan in place. The High Court confirmed that the RMA permits a change to a district plan at any time. The Court noted that changes with more than minimal planning merits should be dealt with on their merits, unless they were sought in a limited time period before a review.

Prospectus Nominees v Queenstown-Lakes District Council [1996] NZRMA 552

The Planning Tribunal confirmed that privately requested changes apply only to operative plans. The Tribunal held that the council was correct in notifying a change but could not actually make the change until the plan became operative.

Kaitiaki Tarawera Incorporated v Rotorua District Council A7/98

The appellant sought extensive changes to the proposed district plan. The council preferred to not proceed with a private plan change until the district plan became operative. However, the Court held that the matters of concern went to the heart of the RMA, and the proposed district plan should be varied to give effect to the Act.

Hall v Rodney District Council A78/95

Rodney District Council rejected a private plan change to enable a landowner to develop 200 houses on a property. Auckland Regional Council opposed the subsequent appeal, claiming the proposal should be dealt with in the upcoming district plan. The Planning Tribunal found that, as the RMA provides for privately-initiated plan changes, refusing such changes on the basis of a forthcoming plan review could frustrate the opportunity Parliament has provided for.

Muir Park Corporate Limited and Another v Christchurch City Council C27/98

The Environment Court refused to grant an application for a hearing about a private plan change sought to a transitional plan. The transitional plan was overtaken by the proposed plan process, and the proposed plan did not support the change. Submissions to the proposed plan were due to be heard in the very near future, and the Court did not believe it was appropriate to hear the references at the time of the request.

McIntyre v Tasman District Council W83/94

A plan change was rejected on the basis that services such as water, sewerage and roading carried out in an ad-hoc manner were not able to be sustainably managed.

Canterbury Regional Council v Selwyn District Council W142/96

A landowner on the edge of Lincoln sought a change in zoning from rural to residential. In allowing the change it was held by the Planning Tribunal that soil quality is not a deciding factor on its own. Rather the Tribunal held that section 5 provides for the protection of the environment for human beings as much as protecting resources for human beings.

JA Campbell and Cross Air Spread Limited v Southland District Council and BW Walker W114/934

The applicant sought a resource consent to establish an international airport in rural Southland. The Planning Tribunal ruled that a private plan change was preferable, as the proposal was contrary to a number of the objectives and policies in the district plan. Further information may have been available to council through the private change process.

Queenstown Property Holdings Limited v Queenstown-Lakes District Council [1998] NZRMA 145

The developer sought and was granted both a plan change and a resource consent. The application was made 10 months after the proposed plan had been notified, and the development would have been a permitted activity when the plan became operative. The Environment Court did not consider the development was an ad hoc grant of land use consent.

CJ McMillan v Waimakariri District Council C87/98

A proposal for a rural-residential subdivision next to a pig-farm was rejected, as the application did not propose measures to mitigate reverse sensitivities. Submitters were concerned that residents would complain about or attempt to prohibit the pig farming operation.

Imrie Family Trust v Whangarei District Council [1994] NZRMA 453

The Planning Tribunal ruled that a shopping centre's request to rezone residential land for expansion failed to meet the s32 tests, as it was not necessary, nor the most appropriate way to extend the retail business. A council review of the district plan's provisions for retail activities was suggested as the best way to achieve a change.

CDL Land New Zealand Ltd v Whangarei District Council A99/96

A plan change was rejected by council on the grounds of inadequate consultation with tangata whenua. The Environment Court found that numerous attempts had been made to consult with tangata whenua, but no response had been received. The applicant was entitled to assume that tangata whenua had no matter they wished to raise, and inadequate consultation was not grounds to reject the plan change.

Canterbury Regional Council v Waimakariri District Council C094/99

This decision relates to a case where the District Council had approved a plan change, rezoning land from rural to rural residential, to the Transitional Plan, which was then appealed by the Regional Council. In addition the District Council had notified a Proposed Plan, which zoned the land in question differently (rural vs rural residential) to that approved through the plan change. In this decision, which is concerned with procedural matters, the Court held that where a Council supports a private plan change to the Transitional Plan but the Proposed Plan is inconsistent with the change, the Council should take the first opportunity to bring its Proposed Plan into line with the plan change.

Waimakariri Employment Park Limited v Waimakariri District Council, C066/03

Waimakariri Employment Park sought to have provisions inserted in the Proposed District Plan for a new zone (Business 5 with special criteria) to apply over 46ha of rurally-zoned land. The Environment Court determined that the overall proposal involved substantive compromise of the Plan's provisions as to non-urbanisation; preventing and avoiding expansion; oversupply of Business zones; effects on town centres; effects on neighbouring zones; and protection of life-supporting capacity of versatile soils. The Court held that it was not appropriate to amend the Plan as sought.

Hastings District Council v Firth Industries, A Division of Fletcher Concrete and Infrastructure Ltd CIV 2004 441 686

This High Court decision relates to an application to the High Court by Firth Industries (who operate a quarry directly opposite the site of a proposed re-zoning from rural to rural-residential of 242 hectares of land and a proposed 60 “lifestyle” lots). Firth sought judicial review of the decision of the Hastings District Council not to treat them as a person directly affected by a request for a Private Plan Change. Firth considered that the notification decision failed to consider them as a person directly affected by the private plan change; that the notification decision did not take into account the reverse sensitivity issues affecting Firth; that the notification decision was made with no evidence, or insufficient evidence, as to the persons directly affected by the private plan change; and that inadequate reasons were supplied by Council for its notification decision.

The High Court found that the Council lacked sufficient information to justify its decision, that the Council did not have material capable of supporting its decision. In particular, the issue of reverse sensitivity issues in terms of visual impact, which were the basis for the Council’s decision directly to notify a number of landowners, applied equally if not much more powerfully to Firth.

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Related guidance notes

The following guidance notes are related:

• Consultation process
• Development of the policy framework
• Making decisions on a plan
• Notifying proposed plans
• Section 32 - Methods of implementation
• Submissions on a plan
• Writing provisions for regional and district plans

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Relevant publications

Private Plan Change Report
Published by Ministry for the Environment - April 2000
This report was prepared to provide information on the private plan change process under the Resource Management Act, 10 years after the introduction of the process. It includes an outline of the origins of the process and its use to date, how the process works, the legal issues which need to be considered, and the workings of the process in different areas of New Zealand.

Your Guide to the Resource Management Act: An essential reference for people affected by or interested in the RMA
Published by Ministry for the Environment - August 2006
This guide for the public presents a simple explanation of the RMA legislation, the processes it has established, and how people can use it to pursue their interests.

Current challenges in practice

Complexity and expense

Council staff and consultants have found that the private plan change process is too complex for many applicants. A lot of information is required from applicants, the costs are very high, and requests for further information can cause lengthy delays.

Consultants have criticised the amount of detail required for some applications. For example, a council might require detailed subdivision designs, even if the lots will not be sold for many years and are subject to further subdivision consents. This level of detail makes the process too complex for individuals to undertake.

Cumulative effects

Community concern has been raised that councils are not taking into account the cumulative effects of rezoning parcels of land in the same locality. Receiving numerous private plan change requests can make it difficult for authorities to have due regard to integrated management, and criticisms have been raised that the process leads to ad hoc planning.

Council resources

Councils can experience difficulties with fitting a private plan change into the planning process, and often require expert assistance. Small councils face resourcing issues when dealing with large-scale developments.

Differing council attitudes

Consultants report that while some Council's take an 'enabling' attitude to private plan change requests, other councils are hesitant or even resistant. Attitudes can depend on the age and stage of the proposed plan; councils tend to be more neutral about applications that are made earlier in the life of the proposed plan. Information requirements also vary among councils.

Identifying all changes required to the plan

Often land is sought to be rezoned without the necessary changes to issues, objectives, policies or zone descriptions being sought. Given that rules and zoning of land are intended to give effect to objectives and policies, if all the necessary changes are not sought difficulties can arise even if those deciding on the request accept the merits of the zoning.

Rule drafting

It can be difficult to draft rules to provide innovative solutions for issues while at the same time fit with the format of the Plan being sought to be changed. To avoid having to seek wide ranging changes to a Plan it is usually necessary to draft new provisions to fit the format of the existing document.

Funding costs of development

A concern for councils when considering large scale rezoning requests is how new infrastructure works or upgrades will be funded. If left with having to impose financial contributions under the Local Government Act councils may be left having to contribute to works away from the site, which are wholly necessitated by the change in zoning. As such, it can be necessary to include new financial contribution provisions in the plan change. This can be difficult given the uncertainties that exist about how financial contribution provisions need and ought to be formulated under the RMA. The relationship of the Local Government Act 2002 and the RMA financial contributions regimes will take some time to bed down and the present challenge in this area is likely to continue for some time.

Private Plan Change charging regime

The issue of charge-out rates for private plan changes is currently topical. Some councils have adopted a range of fees depending on the level of environmental effects. Other councils have a standard deposit fee, plus additional time not covered by the deposit is charged out to the applicant at the standard officer’s charge-out rate.

Council Initiated vs Private Plan Changes vs resource consent applications

Councils are currently facing the challenge of increasing numbers of privately initiated proposals for private plan changes. There is some apprehension that private plan change applications will increasingly lead to ad-hoc proposals for change that do not fit with the council’s programmes to achieve an integrated approach to planning. This is particular an issue in areas of rapid growth.

The council should be proactive in advising whether they are generally comfortable with the private plan change request or not. If a council is likely to oppose a private plan request because it is contrary to the Plan’s overall direction and management objectives, then this advice should be provided upfront. Similarly, if a request would be better dealt with as a resource consent, this advice should be provided as soon as possible.

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Acknowledgements and editorial comments

This guidance note was prepared by Greg Dewe from Connell Wagner Limited, and updated by Vicki Barker and Matthew McCallum-Clark of Incite, Victoria McGregor of Hill Young Cooper and Gina Sweetman of the Ministry for the Environment. The input of the Quality Planning Editorial Panel is acknowledged and appreciated.

This guidance note was prepared in July 2003 and updated in September 2006.